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Information on the 14 subjects by the Insite Law FREE resource project. Note: Cases linked in the text on the right are either to BAILII reports (where available) or the Wikipedia reference. Author
John Bolch, Solicitor Contents 5. Child Maintenance
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AN INTRODUCTION TO FAMILY LAW Chapter 1 - MARRIAGE Capacity to Marry The right of men and women of marriageable age to marry is enshrined in Article 12 of the European Convention for the Protection of Human Rights. However, this right is only exercisable according to the national laws governing the exercise of the right. In English law there are the following restrictions upon the right to marry: Prohibited degrees The parties must not be within the prohibited degrees of relationship.[1] A man or a woman may not marry his or her parent, grandparent, child, grandchild, sibling, uncle or aunt, nephew or niece, and an adoptive parent and the adopted son or daughter are deemed to be within the prohibited degrees.[2] A person may marry the child of a former spouse or civil partner, provided that both parties are 21 or over and younger party has not at any time before attaining the age of eighteen been a child of the family in relation to the other party.[3] Age A marriage solemnized between persons either of whom is under the age of sixteen is void.[4] Existing marriage A marriage is void if, at the time of the marriage, either party was already lawfully married or a civil partner.[5] Same sex A marriage is void if the parties are not respectively male and female.[6] Note that gender reassignment is possible: a person may apply for a gender recognition certificate under the Gender Recognition Act 2004. Polygamous marriage Polygamous marriages entered into outside of England and Wales are void where either party was at the time of the marriage domiciled in England and Wales.[7] [1] Marriage Act 1949, s.1. [2] Ibid, Schedule 1 Part I. [3] Marriage (Prohibited Degrees of Relationship) Act 1986, s.1. [4] Marriage Act 1949, s.2. [5] Matrimonial Causes Act 1973, s.11(b). [6] Ibid, s.11(c). [7] Ibid, s.11(d). Formalities of Marriage Preliminaries Parental consent is required for the marriage of a person under the age of 18 who is not a widow or widower.[1] The consents required are set out in s.3(1A) of the Marriage Act 1949:
Notice of the intended marriage must be given, and the requirements for giving notice depend upon whether it is to be a civil marriage or a marriage according to the rites of the Church of England. For a civil marriage, each party must give notice to the superintendent registrar of the district where they have resided for at least seven days. The notice is displayed in the registrar's office for 15 days[2] at the end of which, provided there are no objections, the superintendent registrar will issue a certificate that authorises the solemnisation of the marriage.[3] Where one of the parties is terminally ill and cannot be moved to a place where marriages can be solemnised then a registrar-general's licence may be issued.[4] For Church of England marriages there are three procedures: banns, common licence and special licence. The banns procedure involves the intended marriage being announced on three successive Sundays, during a church service in the church for the parish where each of the parties resides.[5] Common licence is the ecclesiastical equivalent of the superintendent registrar's certificate and licence, and the rules are set out in sections 15 and 16 of the Marriage Act 1949. Special licence refers to the power held by the Archbishop of Canterbury to licence marriages at any time and in any place, whether consecrated or not. Solemnisation There are four main types of marriage ceremony: civil marriage, marriage according to the rites of the Church of England, Quaker and Jewish marriages and marriage according to another non-Anglican ceremony. Only the first two will be dealt with here: Civil marriages may take place in a register office or on "approved premises".[6] The marriage must be celebrated in the presence of two witnesses, the superintendent registrar and a registrar of the registration district in which the premises are situated, and each party must declare that they do not know of any reason why they may not marry and that they take the other party as their husband or wife.[7] Most Church of England marriages follow the banns procedure, in which case the marriage must be solemnised in one of the churches where the banns have been published. The marriage must be celebrated by a member of the clergy in the presence of two or more witnesses.[8] Registration All marriages must be registered, and the person required to register the marriage depends upon the type of marriage ceremony.[9] Indexes of marriages are kept by the Registrar General; any person is entitled to search the indexes and to have a certified copy of any entry.[10] Irregularities If the parties "knowingly and wilfully" disregard certain requirements as to the marriage then the marriage will be void. The requirements that may cause the marriage to be void are set out in Marriage Act 1949 s.49 in respect of marriages under superintendent registrar's certificate and s.25 in respect of Anglican marriages. Section 48 sets out certain other defects, evidence of which is not to be given in any proceedings touching the validity of the marriage. It appears, therefore, that these (and any other) defects do not affect the validity of the marriage. [1] Marriage Act 1949, s.3. [2] Marriage Act 1949, s.31(1). [3] Marriage Act 1949, s.33. [4] Marriage (Registrar-General's Licence) Act 1970, s.1. [5] Marriage Act 1949, s,6. [6] Marriage Act 1949, s.26(1). [7] Marriage Act 1949, s.45(1). [8] Marriage Act 1949, s.22. [9] Marriage Act 1949, s.53. [10] Marriage Act 1949, s.65. Consequences of Marriage There are a number of legal consequences of marriage but, in practical terms, perhaps the most important in relation to family law are the right to occupy the matrimonial home and the right to seek maintenance. The right to occupy the matrimonial home If one spouse is entitled to occupy a dwelling-house by virtue of a beneficial estate or interest or contract or any enactment giving that spouse the right to remain in occupation; and the other spouse is not so entitled then the spouse not so entitled has the following rights (“matrimonial home rightsâ€):
The right to seek maintenance During the subsistence of the marriage (i.e. excluding when a marriage is dissolved or annulled) one spouse may apply to a court for financial relief against the other spouse. Such applications may be made:
[1] Family Law Act 1996, s.30(1) & (2). [2] Family law Act 1996, s.31. Engagement Engagements to marry are not enforceable at law.[1] A person who was engaged to be married does, however, have certain property rights. For example:
For further details of these matters, see the section 'Engaged Couples' in the chapter Cohabitees. [1] Law Reform (Miscellaneous Provisions) Act 1970, s.1. [2] Law Reform (Miscellaneous Provisions) Act 1970, s.2(2).
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